What you need to know
- The Federal Court has handed down its sixth decision considering the application of section 115A of the Copyright Act 1968 (Cth) (Copyright Act).
- ISPs have been ordered to block access to 28 online locations which have the primary purpose of facilitating the infringement of copyright.
- The orders made relate only to nominated domain names. For new domain names in relation to the infringing online locations, the Court established a mechanism to extend the orders. Completely new sites will need to be the subject of separate proceedings.
- The copyright owners will have to pay compliance costs to the ISPs for the site-blocking.
Background
On 19 June 2018, Justice Nicholas of the Federal Court handed down the latest decision in the series of site-blocking cases. His Honour ordered various ISPs to take reasonable steps to disable access to 28 online locations, which his Honour determined had the primary purpose of facilitating the infringement of copyright in films and television broadcasts on a large scale.
The copyright material in this case consisted of each episode of the third season of the Foxtel television series Wentworth.
The orders largely mirror those handed down in Roadshow Films Pty Ltd v Telstra Corporation Limited [2016] FCA 1503 (as discussed in our December 2016 IP Update), Universal Music Australia Pty Limited v TPG Internet Pty Ltd & Ors [2017] FCA 435 (as discussed in our June 2017 edition of IP @ Ashurst), Roadshow Films Pty Ltd v Telstra Corporation Limited [2017] FCA 1041, Foxtel Management Pty Limited v TPG Internet Pty Ltd [2017] FCA 1041 (both discussed in our October 2017 edition of IP @ Ashurst) and Roadshow Films Pty Limited v Telstra Corporation Limited [2018] FCA 582 (as discussed in our June 2018 edition of IP @ Ashurst). These decisions relate to section 115A of the Copyright Act, which provides a "no-fault" remedy for content holders to pursue organisations (via their ISPs) which operate websites that have the primary purpose of providing access to copyright infringing material.
His Honour grouped the target online locations into 15 categories consisting of a primary domain name and various secondary domain names at which the same content can be found (eg Sockshare: sockshare.net, sockshare.bz, sockshares.stream). Each of the locations facilitated the download of copyright infringing material, either directly or by linking to other websites. One website, torrents.me, both allowed users to download torrent files of the copyright infringing material and provided users with a list of sites from which the user could access other torrent files. All of the relevant target online locations were found to have infringed or facilitated infringement of Foxtel's copyright in Wentworth.
The Orders
Justice Nicholas made the following orders:
- The ISPs must, within 15 days, DNS block (or equivalent) the nominated websites and redirect users to a website which will display a prominent message that the original website has been disabled because the Court has determined that it infringes copyright or facilitates copyright infringement.
- The orders will be in place for 3 years (and can be extended upon application).
- For any new domain names for these websites not already covered by the orders, the copyright owners can file proposed orders to extend the injunction to the new online location/s, which the Court may grant without further hearing if the ISPs do not object to the orders.
- To block entirely new websites, the copyright owners will need to initiate new proceedings.
- The copyright owners must pay the ISPs' compliance costs of $50 per domain name of the websites.
Looking forward
The decision further supports the precedent set by the earlier site-blocking cases for broadly consistent orders where online locations (whether websites or otherwise) are found to have the primary purpose of infringing or facilitating the infringing copyright.
Authors: Anita Cade, Partner; and Imogen Loxton, Lawyer
